Q: When should I remain silent?


I always advise my clients to NEVER talk to law enforcement. There are so many reasons why not to. But please, don’t take my word for it. Read why Law Professor James Duane, a Harvard Law School graduate, claims that you should NEVER talk to law enforcement.

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Law Professor James Duane On Why You Should Never Speak With Police

Law Professor James Duane, a former criminal defense attorney, has put together an insightful video that shows how people who made the mistake of talking with the police or other law enforcement personnel have had bad things happen to them as a result, even when they were provably innocent of a crime.

Professor Duane’s main points of why you should never talk with police include:

1. There is no way it can help.

  • You can’t talk your way out of getting arrested.
  • You can’t give them any information that will help you at trial. See Federal Rules of Evidence 801(d)(2)(A).
  • What you tell the police is only admissible if it is offered against you by the prosecution.
  • If you tell the police something that is exculpatory and then try to get your attorney to get the police to reveal this, the prosecution will object to it saying that it is hearsay. The judge will grant the objection.


2. If your client is guilty — and even if he is innocent — he may admit his guilt with no benefit in return.

  • In federal court, 86% of all defendants plead guilty at some point before trial.
  • Your statement to the police may not be admissible evidence by the time of trial.
  • Many defendants plead guilty because they feel they have no real chance to defend themselves against the government even though they didn’t commit a crime, so they plea bargain instead. It’s the standard tactic of prosecutors; threaten years or even life in prison for something the defendant may not have done so that you can get the defendant to plea bargain to a lesser sentence as the certainty of spending a few years in prison may look a lot better than a small chance of being in prison for life.
  • The Innocence Project reports: “In more than 25% of DNA exoneration cases, innocent defendants made incriminating statements, delivered outright confessions or plead guilty.”How did some of these defendants end up confessing? Some of them were mentally ill and were lied to and manipulated by police to make confessions and were convicted solely on the basis of those confessions, with no other evidence. In his talk, Professor Duane gives two examples of men who served two decades in prison for crimes that they didn’t commit but were duped into confessing by manipulative police.


3. Even if your client is innocent and only tells the truth, he will always give the police some information that can be used to help convict him.

  • As the U.S. Supreme Court in Ohio v. Reiner, 532 US 18, 20 (2001) stated: “One of the Fifth Amendment’s basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances. Truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the witness’s own mouth.”
  • Professor Duane gives an example in which an innocent target of an investigation points out the police that he didn’t kill the man, didn’t own a gun, has never used a gun, and that although he didn’t like the man nobody else did either. The prosecution would seize upon putting the statement about not liking the man in front of the jury. They would look at it as motive. Even a factually accurate and seemingly innocuous statement can be twisted by the police and prosecution into evidence of guilt.
  • In Ullmann v. United States, 350 US 422, 426 (1956), the Court opined on the Fifth Amendment: “Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege.”


4. Even if your client is innocent and only tells the truth and does not tell the police anything incriminating, there is still a grave chance that his answers can be used to crucify him if the police don’t recall his testimony with 100% accuracy.

Think about that for a minute. I already told you some police are liars and perjurers; obviously they may not be accurate reporters of fact. But even the ones who are not liars or perjurers do not have perfect memories or hearing. It is easily possible for them to miss a word that totally changes the meaning. Take the “not” out of this sentence and it becomes incriminating:

“I did not kill Mr. Brown with a gun.”

If there was a noise in the room that made the “not” hard to hear or the cop was simply lost in thought for a moment, the cop might honestly think you said, “I did kill Mr. Brown with a gun.” You’re in deep trouble given how people are sometimes convicted on the basis of a confession and no other evidence.

You should be particularly wary of any cop who refuses to allow you to record a conversation with all parties present being recorded. Such an attitude screams, “I am a liar and want to be able to lie about you with impunity.”


5. Even if your client is innocent and only tells the truth and does not tell the police anything incriminating and his statement is videotaped, his answers can be used to crucify him if the police don’t recall their questions with 100% accuracy.Imagine that you are accurately quoted as stating: “I have never owned a gun and never used a gun and certainly did not kill Mr. Brown with a gun.”

Now imagine what it will sound like when the detective who was questioning you says on the stand that your answer was really strange because he never said anything about a gun, he clearly remembers referring to no weapon used in the murder. You will look guilty even though you are not.


Even if your client is innocent and only tells the truth and does not tell the police anything incriminating and the entire interview is videotaped, his answers can still be used to crucify him if the police have any evidence, even mistaken or unreliable evidence, that any of his statements are false.

The example the Professor Duane uses is a statement along the lines of “I was never in Virginia Beach that day, I was four hours away at my mother’s home in the Outer Banks.”

The prosecution can make you look like a liar by producing a witness that says you were somewhere else than where you said you were. While paying or otherwise compensating a witness to lie, such as by offering immunity for testimony against you, is one way to do this, that may not even be necessary. It could be that somebody who looks a lot like you was caught on a video tape in a store somewhere in Virginia Beach and the sales clerk will testify that he saw you and identify you in the courtroom by pointing at you. He may even honestly believe it was you, but it was not. Now you look like a liar, even though you are not. You will also look guilty, even though you are not.

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